Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00990-EJD

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ATTACHMENT

B

Case 1:05-cv-00990-EJD

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IY~ITED STATES DISTRICT COURT SOUTHERIq DISTRICT OF OHIO EASTERN DIVISiON

JUL 8 2000 1
~cnnc~ ~urphy, A Cl~rk Colu!nbu% Ohid~""

Jeffrey

D. Cottrell JUDGMENT IN A CIVIL CASE Case Number C-2-99-282 Judge James L. Graham

Plaintiff

RECEIVED USDA-COLUMBUS, OF! Dan Glickman, USDA Secretary,

JULB ? ZOO0
OFFICE OF THE GENERALCOUNSEL

Defendant

[]

Jury Verdict. This by jury. The issues its verdict.

action came before the Court for a trial have been tried and the jury has rendered

[]

Decision by Court. This action came to trial before the Court. The issues have been tried or heard and a decision has been rendered. Decision by Court without trial or hearing.

Ix/

IT IS ORDERED AND ADJ-u-DGED that defendant's motion to dismiss is GI~A_NTED. The claim in count I is dismissed without prejudice for lack of st~bject matter jurisdiction and counts iI and Ill are dismissed for failure to state a claim and for failure to exhaust administrative remedies.

July Date

18,

2000

KENNETH Clerk

J. MURPHY

Case 1:05-cv-00990-EJD

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IN THE LINITED STATES DISTRICT coUP~T DISTRICT FOR THE SOUTHERN OF OHIO EASTERN DIVISION ~Jeffrey D. Cottrell, Plaintiff, v. Dan Glickman, USDA, Secretary, Case No.

JUL1 8 ZOO8 Kcrmeth Murphy, J. Clerk Colu~mbus, Ohi6

C-2-99-282

Defendant.

OPINION This against Secretary The is an action defendant of the filed

AND

ORDER plaintiff, in his Jeffrey D. Cottrell, capacity ("USDA") the federal as

by the

Dan united

Glickman States

official of Agriculture under

Department

complaint

invokes

this of 28 (i),

court's U.S.C.

jurisdiction §1331, the tort

question

provisions §1346(b)

claim

provisions and and 704.

of 28 U.S.C. the I.

Priv acy Act

Act, 5 U.S .C . §552a (g), 5 U.S.C. §~702

Administrative History This of the action

Procedure Case stems from he

("APA"),

the

plaintiff's from his

efforts grandmother, ("CRP"). the

to

enroll Lucille See of to

certain Stuller, U.S.C. the

farm in §3830, is

acreage the et

which

leased Reserve

Conservation sea. In to

Program the

implementing enter the into owners Under agree must

CRP,

Secretary of of the ten

USDA

authorized duration U.S.C.

rental or this

contracts operators program, from

Ll~ue

n years 16

with

eligible owner or

farmland. operator on the cover

~3831(e). must and improve

of the land in

farmland question and

to refrain

planting

crops

establish and water

appropriate resources.

vegetative 16 U.S.C.

to

conserve

soil

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§§383!(a), for sharing

3832.

The

Secretary_

is responsible measures owner

under and

the for

contract paying for an the

in the

cost

of conservation the

annual

rental

payment

to compensate erodible

or

operator devoted to

conversion production intensive Under be based has been on

of the of use. the an 16

highly

cropland commodity 3834.

nol~ally on

to the a less

agricultural U.S.C. §§3833,

a farm

applicable

re~alations, plan Soil of

a long-term for

agreement the farm

must which 7

a conservation by the Any farm of

operations

approved

Conservation of

Service

("SCS") ~. who of

C.F.R. not land

§701.16(b). of the

signatory must the

a long-term assurance of the

agreement of control

an owner for the

provide period

the

duration See also

agreement.

7 C.F.R.

~701.16(e). The entered of

former that

7 C.E.R~ on

§704.6(a). 17, Stuller from the of 31, and 1986, the plaintiff 338 acres 1987 and to

record into

reveals

December Mrs. Ohio date, acres

a lease in

agreement

with

to lease January plaintiff i,

cropland 31, agreed from July

Coshocton On

County, that same

December Stuller County On

1996. to the i,

Mrs.

lease 1987 the the

of 200+ to

cropland 2007.

in Coshocton

January 17,

December

1989,

plaintiff

Mrs. in the

Stuller CRP

signed for

an a By of

application ten-year letter the

to enroll period from 8,

leased i, Loran

acreage 1990 to

p~ogram 31,

January 1989,

December Executive and

1999.

dated

August County

F. Stutz,

Director Conservation

Coshocton

Agricultural

Stabilization

i The SCS is now k~own as the Natural Resource Conservation Service of the USDA. Se____~e7 C.F.R.§780.1. 2

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Service his yet been the in CRP been met,

Committee bid was

("the withil

Committee"), acceptable other of the I. the The

notified rental CRP

the

plaintiff but "it has

that not have in

limits,

determined such as,

whether eligibility Ex.

eligibility itself was

criteria

]_and

for enrollment further approve plan

program." this letter the

Complaint, that SCS

plaintiff

advised the CRP by

before

Committee

could

agreement, the also accept August

had

to develop for

a conservation the had land until The in

approved The i,

conservation stated the 31, that

district the

~estion. September

letter 1989 that to to on the

Committee CRP SCS bid.

plaintiff's 1989, the

plaintiff an approved

alleges plan

submitted

Committee. On admitted four September to 4, 1989, Under Mrs. the Stuller terms Tanya were were being of J. named in died Mrs. and her estate will, was her

probate. James K. of the

Stuller's

children, and Not

Stuller, Cottrell, the CRP. heirs U~on

Levering, as heirs of of the

Mary to the

Louise leased land

Haldeman property. being death,

Nancy all in

favor

leased

entered the

informed that the the

Mrs.

Stuller's could for not the

Committee that he CRP

expressed had period

concern over

plaintiff farmland of

demonstrate entire heirs. application 338 the acres

control because was was on the

leased

ten-year The for would

of the by

objections the

some

of the his the of have to

plaintiff the CRP

advised in question 31j

Committee the

that of

because 1996, and four

lease

expire for

December CRP

four that

years

short

ten-year

period

agreement, from the

he would

to obtain

an extension

of the

lease

heirs

in order

3

Case 1:05-cv-00990-EJD

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participate mother, signed othe~ Nancy

in

the

program. as

On

June

12, of

1990, Mrs. the

the

plaintiff's estate, the CRP to

Cottrell,

executor to

Stuller's lease. The to

a document three heirs was

purporting did denied of 1990, number P. not sign by the the the

extend

However, plaintiff's his failure

this

document. due

application obtain On court the

Committee

signatures 15,

remaining plaintiff

three

heirs. an action assigned to in to this the

August

filed which was

under

case

C2-90-609, See

Honorable Ex. 28 A. As

Joseph in this

Kinneary. the

Defendant's alleged

Motion

Dismiss, under 704. The

case, and then

plaintiff and

jurisdiction 702 K. and

U.S.C.

§§1331 were

1346(b)

5 U.S.C. of USDA Mary that

§§552a, Clayton Haldeman.

defendants James

Secretary Levering alleged

Yeutter

2 and the the and to

Stuller, in

Tanya that CRP

and

Count denial

I of of

complaint plaintiff's requested enroll under Yeutter, information asserted respectively, claim the the

case

the

agency and

application relief of land 5

was directing in the

arbitrary the CRPo

capricious of the asserted USDA

equitable parcels Privacy alleging from claims the

Secretary Count II

a claim

Act,

U.S.C.

§552a(b), disclosure CRP of file. privacy and

against of

Secretary

unauthorized plaintiff's invasion Secretary

confidential III and IV

Counts and Count

of

defamation, V asserted against a

against

Yeutter,

of tortious

interference Levering

with and

a business

relationship

defendants

Jtul!er,

Haldeman.

~ The court notes that the former secretary's name is spelled both "Yeutter" and "Yuetter" in the case captions bearing his name. However, "Yeutter" is by far the more frequently used version and is presumably the correct spelling. 4

Case 1:05-cv-00990-EJD

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By

order

dated

March that

27, Count

19917

Judge be

Kinneary dismissed

rejected for

the

Secretary's to exhaust III and IV

argument

I should but

failure

administrative on that order basis. filed to the

remedies,

granted Motion 15, 1991,

dismissal to Dismiss, court

of Counts Ex. B.

Defendant's on November on

However, summary agency

,by

the

granted that the CRP without Ex.

judgment acted

Secretary in 1993,

Count

I, the

finding

appropriately On September 27, Sere

denying Count

plaintiff's dismissed to

application. prejudice D. Judgment October Circuit appeals Motion 7,

Ii was Motion

by stipulation.

Defendant's

Dismiss,

was

entered The

in

favor

of

the

Secretary judgment 1994,

on Count to the the

I on Sixth of

1993. of

plaintiff

appealed On October

this ii,

Court affirmed to

Appeals. the decision E,

court

of the v. Cir.

trial

court.

See

Defendant's F.3d 1215

Dismiss, 1994 the that

Ex.

Cottrell (6th in the

Yuetter 1994).

[sic] , 38 The court the

(unreported), concluded the the that

WL 560967 evidence the in

of appeals decision of in

record not

supported eligible

Secretary CRP

plaintiff light of not the

was the

to participate of a will evidence CRP

because, the heirs,

possibility satisfactory for the

contest that contract he

between would period. 2, 1994. If.

he did of

provide land of

be

an

operator mandate

entire was

The

of the

court

appeals

filed

on November

Plaintiff's On March case

Claims 18, 1999, the plaintiff filed the complaint complaint in the also

instant

against

Secretary

@lickman.

This

Case 1:05-cv-00990-EJD

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involves

the

USDA's

decision

in 1990

to

deny

the

plaintiff'@ on a breach 8,

CRP of 1989 an an the

application. contract letter theory. which he

However, The

this

complaint alleges Director

relies that the

plaintiff from

.August

received application, plan.

Stutz on the

constituted SCS submitting that when

acceptance approved SCS

of his

conditioned The plaintiff 31,

conservation such became when death

contends the

submitted

a plan

on August

1989, upon

acceptance States

of his which in the

application was CRP breached upon the

a contract the of

binding

the

United

Committee Lucille I, the

revoked

his

participation

Stuller. plaintiff the seeks defendant ordering equitable from the relief in the

In regard the form

to Count

of an injunction participation in the CRP the due from

enjoining in the January

revoking

plaintiff's placement the

CRP,

and

plaintiff's 31, 1999. in the

i, 1990

to December

alternative, allegedly

plaintiff under asserts iI, from the

seeks

"restitution"

of $269,750, p. 7.

amount

contract. a Privacy that

Complaint, Act in claim 1989, file the

The defendant released 5 U.S.C. previously was

plaintiff in Count

against the

the

alleging his claim

Committee of was

information §552a(b) advanced

confidential

CRP

in violation claim which

. This as

is essentially II in case number

Count

C-2-90-609, The plaintiff

which also

voluntarily a new

dismissed Privacy Act the the

without claim

prejudice. under 5 U.S.C. to

advances Count update keep

§552a(c)

- (e) maintain,

IiI, and

alleging correct

Committee contents of

failed the

properly CRP

plaintiff's the contents

file,

to file

a record

of disclosures,

or to reveal

of the

Case 1:05-cv-00990-EJD

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to the costs III.

plaintiff. on his

The

plaintiff Act claims. to

seeks

damages,

attorney's

fees

and

Privacy for

Standards The

Motion has the and

Dismiss pursuant

and

Summary R.

Judament Cir. lack a claim P of subject which

defendant to dismiss

moved

to Fed. claims to

and

(6)

plaintiff's for failure

for

matter relief

jurisdiction may be granted. may 12(b)

state

for

A complaint pursuant the which 45-46 most to Rule

be (6)

dismissed only set where of

for

failure

to

state

a claim

it appears in v. the

beyond of 355

doubt his U.S. a claim 41,

plaintiff would

can entitle The to

prove him court the

no to

facts Conley

support Gibson, complaint all v.

relief.

(1957). favorable

must

construe and

in

light

plaintiff

accept Scheuer

well-pleaded 416 U.S.

allegations 232 (1974). if

in the

complaint

as true.

Rhodes,

mo tion the complaint of

to dis miss und is without made face bar (6th to Cir.

er Rul e 12( b) (6) will merit or of due to an absence sufficient reveals v. Da V court of law to make that

granted to

support

a claim or

the

type the

of facts the

a valid there Mfg. is

claim, an

where

complaint Rauch The

insurmountable 576 F.2d 697

relief. 1978). legal

& Niqht is not

CorD.,

required

to accept Morqan

as true v.

unwarranted Fried

conclusions 829

or factual i0 (6th

inferences. Cir. 1987). Where jurisdiction, in order

Church's

Ch&cken,

F.2d

a defendant the

raises

the the

issue

of lack

of subject

matter

plaintiff the

has

burden

of proving

jurisdiction Reqiona!

to suz-v-ive

motion.

Moir

v. Greater

Cleveland

Case 1:05-cv-00990-EJD

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Transit whether establish the

Auth., the

895 facts

F.2d

266,

269 in

(6th the

Cir.

~990). are

In determining sufficient allegations Life Ins. Co. t6 in v.

alleged matter accepted F.2d

complaint the

subject are

jurisdiction, as true. 325 to Ohio

factual

complaint [email protected],

National 1990).

United

922

320,

(6th dismiss

Cir.

In considering court matters dismiss Industries is empowered outside into the

a motion to resolve pleadings

under disputes,

Rule

12(b) may the v.

(i), consider motion to

factual without

and

converting Roqers Cir. where by

a summary 798

judgment 913,

motion. 915-16 12(b) not for (6th (6),

Stratton However, outside the to

Inc.,

F.2d

1986). matters the

in considering the pleading must R. Cir. the

a motion are

under to

Rule and

presented

excluded summary have on

court, pursuant

motion Fed.

be treated P. 56.

as a motion Here, In intent summary the an to

judgment presented June 16,

parties order treat

materials 2000, motion parties the to an

outside court dismiss

complaint. its for

filed the and

announced as one to

defendant's gave No for the such

judgment,

opportunity have been The R. Civ.

present and for which

additional the motion is

materials. now ripe

materials

offered, procedure

a ruling. is found in Fed.

granting provides:

summary

judgment

P.

56(c),

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The evidence must be viewed in the Kress 8 light most 398 favorable U.S. 144 to the

nonmoving

party.

Adickes

v. S.H.

& Co.,

(1970).

Case 1:05-cv-00990-EJD

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Summary is

judgment "that return

will is,

not if

!ie the

if the

dispute is

about such

a material

fact

genuine, could

evidence for the

that party."

a reasonable ~derson v.

jury

a verdict 477

nonmoving 248 (1986).

Liberty judgment showing essential the 317,

Lobb~ is

Inc.,

U.S. if

242, the

However, fails of party to an

summary make element will 477 Ltd. v. bear a

appropriate to party's at

opposing the on

party

sufficient to of that

establish case and

existence which CORD. Elec. that v.

burden 322

proof

trial. also U.S.

Celotex Matsushita 574

Catrett, Co.,

(1986).

Se___ge 475

Indus.

Zenith IV.

Radio

CoreD.,

(1986).

Count of

I - Breach Jurisdiction

of Contract

A. Lack i. The

Court

of Federal first the

Claims a~gues that breach this court does claim is one not have

defendant over of the

jurisdiction in Count the I

plaintiff's

of contract that the claim United has

asserted falling Court 6f to

complaint

because of

within Federal

exclusive The

jurisdiGtion Court of

States

Claims.

Federal

Claims

jurisdiction

entertain any claim against the United States founded either the Constitution, or any Act of Congress or regulation of an executive department, or upon express or implied contract with the United States, for liquidated or unliquidated damages in cases sounding in tort. 28 U.S.C. §1491(a) courts against §1346(a) (i). The Court of Federal over Claims nontort upon any any or not

and monetary

district claims U.S.C.

share the (2)

original States

jurisdiction not exceeding to

United

$i0,000, the

se___~e

28

(sometimes

referred

as

"Little

Tucker

Case 1:05-cv-00990-EJD

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Page 12 of 36

~ ""] than 28

while $I0,000

original vests

jurisdiction

over

such

claims

seeking Claims Nay.

more under Co.,

exclusively so-called F.3d 1255,

in the "Big 1267

Court Tucker (3d

of Federal Act"). 1994).

U.S.C. v.

§1491

(the 34

Dia

Ltd.

Pomeroy,

Cir. the

Jurisdiction if the the 898 claim

lies

exclusively upon"

with

Court

of Federal the v.

Claims and

is "founded

a contract

between Inc.

plaintiff

United F.2d

States. 1165, 1168 within under

A.E. (6th the the

Finle V & Assoc. 1990); 28

United

States,

Cir.

U.S.C.

§1491(a) of the

(i). Court does bases of not of

action Federal have

rests Claims

exclusive Tucker of

jurisdiction the district

Act, other

court

jurisdiction such

regardless as 28 U.S.C. argues that with

possible I_~d. the

statutory

jurisdiction The on an

§1331. since the

at 1167. in Count for i is based which the c_alm the is

defendant

claim

alleged seeks

contract in excess

United in money of the

States

plaintiff within The not the be the

of $i0,000

damages, of

exclusive asserts and

jurisdiction in response that the

Court

Federal

Claims. relief, for in not of

plaintiff money

that

he seeks

injunctive he prays which for

damages,

"restitution" of specific money

which relief damages

alternative considered

is also the

a type

should breach

equivalent

of

contract. A party suing such Inc. 1997) solely relief v. U.S. cannot for is circumvent or to Air the Tucker Act's relief for iii money 37, jurisdiction in a case by where Ve~da Cir. loss

declaratory

injunctive

tantamount of the

a judgment Force,

damages. 39 (6th for

DePt.

F.3d

("Undoubtedly,

the

conceptual

line

between

damages

I0

Case 1:05-cv-00990-EJD

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sustained

and

specific A.E. cause is vested but

relief Finlev, of action in the the 810

may 898

be

obscured at 1167.

~by It is

creative not the the of

pleading[.]"); nature of the

F.2d which

determines court of the or relief

whether the Court

jurisdiction Federal Matthews The Claims, v.

district nature F.2d 109, "primary v. United at

rather

requested. 1987). test F.2d adopted 1530,

United

States,

II!

(6th

Cir.

Sixth

Circuit

applies

the

objective" States, 39. Under is 901

in Eamle-Picher 1532 the (!0th primary from Cir.

Industries, 1990). of Veda, the

Inc. iii

F.3d

this

test, to obtain Court of

objective the federal I_~d. that an

complaining the

party case

simply in the

money Federal

government,

belongs

Claims. fact of

The the form

a plaintiff

has

requested not give is

equitable the to

relief

in

injunction his under of such prime

would

district the where force

court money "the the 901

jurisdiction allegedly practical government F.2d due

where him

objective alleged injunction

recover and be to

the an

contract would

effect to abide

by the

contract."

Eaqle-Picher

Industries,

at 1533. if the plaintiff's claim is concerned solely and has with nothing under rights to do

created with

within

a contractual

relationship of the

duties

arising

independently then and F.3d was is the claim

contract upon North

a statute with v.

or the the

Constitution, States 14

is founded Act claim, 1994)

a contract Star Alaska

United

a Tucker 37 (9~h solely

United seeking

States,

36, based

Cir.

(plaintiff's and district

claim court

refor~ation

on contract

i!

Case 1:05-cv-00990-EJD

Document 14-2

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did

not

have

jurisdic~ion) 598, 609, 611

Transohio (D.C.Cir. the presence a contract, district of

Savin~s !992)

Dank

v. Director, question

OT___~S, 967 F.2d depends claims statute over

(jurisdiction

on whether, are or founded the for

despite only on

of a contract, or whether court they

plaintiff's stem from a

Constitution; specific

lacked

jurisdiction which did not

claim

performance

a contract

involve

statutory court

or constitutional jurisdiction fact over

rights). a suit for nonmonetary be the by its basis relief for an

District is not award

foreclosed of damages effect in

by the against the

that

it may

later

the

United

States Claims.

collateral 810 not it F~2d have

estoppel at

Court the

of Federal Court of

Matthews, does

111-1121

Likewise, jurisdiction

Federal merely

Claims

exclusive

over

a

suit of

because ex. tel.

raises v. the

contract-related Dole, 749 F.2d court if the "the

issues. 331, can 335

State (6th Cir.

Tennessee

Leech while

1984). over

However, a claimant's

district claims the

take

jurisdiction relief or effect

nonmonetary purpose must apart of have f~om

nonmonetary declaratory

sought

is the relief

primary sought value of the

suit,

injunctive or

significant merely

prospective [the] at

considerable liability

determining 810 F.2d the

monetary

government."

Matthews,

iii. objective" that the test to the record of in the this claim The alleges The

Applying case, in this i

"primary concludes

court is

primary the and basis

objective United the for

Count

to I

recover sounds as the

money in

from

States.

language breach of

of Count contract

contract,

complaint recovery.

plaintiff's

12

Case 1:05-cv-00990-EJD

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plaintiff the relief

does

not

allege under

in

his

complaint

that

he

is

entitled statute

to or or

requested The provision contract. defendant

the

provisions does not

of a specific identify violated not seek any

regulation. regulatory the alleged the

complaint which The the

statutory

defendant does the

in not an

honoring

plaintiff to

injunction statute

ordering or

to adhere the SCS

provisions alleges

of some that

regulation. was formed this

Rather, when the

complaint submitted not

a binding

contract plan, and

an approved

conservation the death

that

contract

could

be rescinded

upon

of Mrs. The relief the has the due

Stuller. plaintiff cannot his be requesting some CRP to form of prospective the 31, term of

concerning

participation from January

in the i, 1990

because December the for

alleged passed. plaintiff to the

contract, By the very

1999, by

posture nature alleged

of this of

case,

relief

sought

is in the defendant's for

compensation breach of See

previous agreement, Iii E.3d

damage not at 40, with for award should

a CRP Veda,

future n.2.

payment ("The term for

services

rendered. is

'money previous The

damages' damage

normally not effect the

associated future payment an

compensation services of money

or injury, is he in

rendered."). as

plaintiff for award what

seeking defendant money

a substitute and such an

alleges

have

done,

would

constitute

damages.

Pomeroz, This monetary statutory

34 F.3d is not relief

at 1267. a case and "is See where the plaintiff only F.3d has made no request for

seeking Veda, !ii

injunctive at 39.

rel~ef

to enforce relief in

rights."

injunctive

13

Case 1:05-cv-00990-EJD

Document 14-2

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Page 16 of 36

this

case

would value of the way

have

no

significant from See the merely

prospective determining 810 F.2d the at

effec~

or

considerable liability

apart

monetary I!i.

government. of construing

Matthews,

~_nother relief the which do not is that

plaintiff's for

prayer

for equitable performance is not federal by the of

it amounts of

to a request a value over

specific This The

alleged

contract the

$10,000. court.

a claim courts United

is within have of the

jurisdiction to order

of this specific

power

performance

States

its

alleged Corp. court v.

contractual Diamond,

obligations. 884 F.2d i, 3

See

Coqqeshall {ist of Cir.

Development 1989) claim (district

lacked

jurisdiction

over

breach

contract

requesting The plaintiff claims for

specific cannot

performance). avoid his the jurisdiction for court 756 of the Court of

Federal as one

by describing

request As the

monetary noted (7th

compensation in Cir. at law The Reich v.

"restitution." Casualty__~., is a legal remedy ... 1 Dan remedy when 33

Continental restltution equitable went ed.

F.3d

754,

1994), and an

when

ordered in an

in a case equity

ordered Law that into

case." §4.1(2), for

court (2d of 33

on to cite 1993) for may

R. Dobbs,

of Remedies not every for

p. 559 price Reich,

the

proposition

suit

the

a contract F.3d

be converted

a suit

restitution.

at 756. This court Count with matter finds i is the that the the primary of and this objective money that based this of the upon plaintiff's an alleged not have

claim

in

recovery States, over

contract subject

United

court

does

jurisdiction

claim.

Case 1:05-cv-00990-EJD

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2. The APA. The

Jurisdiction plaintiff plaintiff in which

Under has

the~APA this court's v. jurisdiction 487 under U.S. the 879 of That

invoked

relies the

on Bowen

Massachusetts, discussed the 5 U.S.C. immunity courts "any

(1988), district section other

Supreme

Court under of in

nature §702. for

court's provides

jurisdiction for a waiver filed agency suit See

the

APA,

sovereign the

claims, the

than

money for

claims,

district unless or §702. that the

against other

government .that relief grants

unlawful to

actions, expressly 5 U.S.C. held of

statute the

consent is

impliedly

forbids

which In Bowe~,

sought." the Supreme an

Court order

district of for

court Health

had and

jurisdiction Human under Services

to

review

the

Department a state

which

refusedito The the

reimburse state to

expenditures or

a Medicaid relief

program. under

in Bowen require

sought

declaratory

injunctive future money of the

APA

the

Secretary was

to modify not as seeking a result a

Medicaid in

practices. for of for

The damages

state for

in

Bowe__n

compensation withholding mandate courts

a loss

suffered seeking to

funds, payment Star

but

rather

enforce

statutory The the

the

of money. Transohio involved "impliedly

I__d.

at 900. Bowen and on the on the

in North no not of

and was the

distinguished in that case

grounds Court

that did

Contract address

Supreme the APA

forbids" courts

limitation held claims 14 that

APA's does

waiver not or does

sovereign sovereign relief.

immunity. immunity See

Those for

waive

contract Star

seeking F.3d at

specific 38 (APA

equitable not waive

North

Alaska, for

sovereign

immunity

contract

claims

15

Case 1:05-cv-00990-EJD

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~eeking (Tucker damages

equitable Act or

relief);

Transohio district in

Savin~, court

967

F.2d of

at

609

impliedly injunctive APA waiver specific

forbids relief of

awards

money the to

contract immunity

actions does

against not extend

government; actions The on the

sovereign

seeking

performance district

in contract court of the ... "does its

cases). not claims seeking turn as solely being

jurisdiction plaintiff's [in] nature,

of the

characterization but on whether claims United contract. or

equitable relief laws arise or are

actions are

equitable on the that Trust 418,

really

contract of of Housinq (APA the the

claims

based duties Place

Constitution

States Lulac

creating" East Park 32

independently Dept. of

v. U.S. 423

and.Urban does not

Development, waive

F.Supp.2d immunity Act's on the

(W.D.Tex.

1998) claims equitable the the

sovereign relief;

contract-based on granting

seeking relief

injunctive precludes even before The all

Tucker relief under

bar

such

contract APA) solely that of into

claims

against Count I in

government, complaint claim. any

if asserted this court

is phrased not or alleged

as the the

a breach defendant

of contract violated in alleged do not

plaintiff or

has

statute to admit upon out

regulation plaintiff's he relies or

provision farmland

Constitution The and

failing rights arise the barred this

the

the CRP. in nature, provision. equitable the

which of any

are

contractual

statute

constitutional claims not for

Therefore, relief are of APA,

plaintiff's by the under

contract-based Act APA. for and are

Tucker the

within

jurisdiction Under the

court

judicial

review

is provided

agency

action

16

Case 1:05-cv-00990-EJD

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"for U.S.C. claims

which §704. for an v.

there

is

no the

other

adequate Claims the a suit 645 the

remedy Court Act

in

a court[.]" entertain not always States. However, Claims of

5

Since injunctive adequate Reno, 41

Federal

cannot will

relief, remedy F.3d in 641, in

Tucker against (Fed. Court the to

provide Kanemoto where

the

United

Cir. of

1994).

the

relief the

available

Federal

is that

adequate, court relief by

plaintiff an

cannot that

escape appears

jurisdiction seek only

framing the I_~d. one for and

action real

equitable in excess I is

when

party's

effort the

is to obtain plaintiff's from

damages claim the

of $i0,000. basically of

at 646. monetary that Claims. also

Here,

in Count alleged

relief can

stemming be

breach in the

contract, of The

claim

adequately

addressed

Court

Federal plaintiff 976

relies 1989),

on the which in

decision

in Esch the USDA's

v.

Yeutter,

876

F.2d

(D.C.Cir.

involved two farm ~hat

suspension one

of the of

plaintiffs' was the

participation CRP. The court

subsidy the

programs,

which

found over the

district the from

court APA, its I_~d. and own at

properly further

exercised found in The the that

jurisdiction the USDA the had

case

under

"fatally

departed under

regulations 977. attacked the

meting

out

suspension that the

attack." claim,

court adequacy

concluded of the

plaintiffs'

which" to form

administrative and was has requested not not

procedures redress for that

leading in the

decision and

to revoke impartial the follow

payments hearing, here

of a fair

a claim alleged is he

money the

damages. defendant a new

In contrast, failed to

plaintiff USDA

regulations,

nor

requesting

17

Case 1:05-cv-00990-EJD

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hearing. of the

Rather, contract

he and

has a

in

essence

requested recovery.

specific Therefore, a basis

performance Esch district is

monetary APA does case.

3 distinguishable. court B. jurisdiction to

The in

not

furnish

for

this

Failure The

Exhaust

Administrative also argues has be in

Remedies the alternative over for the that, claim to in even Count

defendant that claim this

assuming I, that

court

jurisdiction dismissed APA

should remedies. only where

failure for judicial by there

exhaust review or of is

administrative agency a "final which action agency a nor

4 The it is

provides

"made

reviewable Here,

statute" is no

action." USDA has

5 U.S.C.

§704. of shown

statute the CRP his

makes

determination the plaintiff

ineligibility that he has

for

reviewable,

exhausted

~ In footnote dicta, the court in Esch also opined that the subsidy programs were not "contracts" within the meaning of the Tucker Act, despite the fact that the statutes establishing the CRP use the term "contract," sere 16 U.SoC. ~§38323835, because the plaintiff's claims arose under a federal grant program and turned on the interpretation of statutes and regulations rather than on the interp, retation of an agreement negotiated by the parties. Sere Esc___~h, 876 F.2d at 978. This court sees no reason why Congress would have used the term "contract" in the statute if it did not mean "contract" in the usual sense of the word. In any event, the test for Tucker Act applicability is the nature of the relief requested. Claims for the recovery of money based on a federal grant or on an entitlement under a federal statute can also fall within the Tucker Act. Se___~e, ~, Kanemotq, 41 F.3d at 646 (finding Tucker Act jurisdiction over money claim brought under statute providing for restitution to Japanese Americans interned during World War il) ; Eaqle-Picher Industries, 901 F.2d at 1532 ("Situations in which the prime objective of the plaintiff was to obtain money from the government include an effort to enjoin the denial of a federal grant[.]", citing United States v. City of Kansas City, Kansas, 761 F.2d 605, 608 (10th Cir. 1988)). Further, unlike the claims in Esc___~h, Count I in this case alleges solely that the plaintiff is entitled to relief based upon the formation of a binding agreement negotiated with the USDA. ~ The defendant presents this argument under the framework of the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §1346(b). While the plaintiff has referred to this section in his complaint as a basis for jurisdiction, the claim in Count I sounds in contract and cannot reasonably be construed as a tort claim within the scope of the FTCA. This court's jurisdiction over Count I, if any, would be under the APA, and the court will address the defendant's exhaustion arguments under the standards applicable toiclaims brought under the 18

Case 1:05-cv-00990-EJD

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administrative The discretion statute Dixie 1058-59 procedure rules and or Fuel

remedies

leading

to

a final is not

agency

action. Courts required lack by

exhaustion to require an Co. agency v. Cir.

re_qmirement exhaustion rule

absolute.

unless such

it is expressly an appeal Security, USDA rules

requires

before 171 do Pt.

review. 1052, a

Commissioner 1999).

of Social Herej review. that "[a~ the See

F.3d

(6th for

provide 780. These final

administrative the provision unless

7 C.F.R.

include

decision is

shall timely

become sought

non-revieWable is timely

reconsideration 7 an v. C.F.R.

or the the to F.2d

decision relevant judicial 1035, exhaust

appealed." require See Madsen

§780.8.

Therefore, appeal prior 866 failure

regulations review. (Sth Cir.

administrative Dept. of

Aqriculture, for 780). excused

1037

1989)

(upholding in

dismissal Pto may be

administrative of

procedures administrative that it

7 C.F.R.

Exhaustion plaintiff

remedies would it be is

if with

the the will Cir.

demonstrates

futile clear F~2d

to comply that the 1189

administrative be rejected.

procedures DCP Farms v.

because Yeutter,

claim (5th

957

1183,

1992).

However,

this be

exception exhausted

to

the

requirement only

that

administrative circumstances. administrative to avoid 873 In the Judge them. F.2d

remedies I_~d. The

applies

in extraordinary exhaustion party of

burden would v. (6th

of demonstrating be futile Tennessee falls

that on the

remedies

seeking Athletic

Crocker 933, 937

Secondary

School

Ass'm,

Cir. filed that

1989) by the plaintiff had in this court,

action

previously

Kinneary

determined

the

plaintiff

sufficiently

19

Case 1:05-cv-00990-EJD

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demonstrated futile. the issue

that

pursuing Motion whether

his to the

administrative

remedies pp. 6-8.

would However,

be

Defendant' there the was

Dismiss, USDA had

an adequate the the

opportunity had

to

address

plaintiff's in on the

complaint him to

that obtain and

agency

acted of the that

inappropriately Stu!ler it had heirs such an

requiring CRP

signatures concluded

application,

the

court

opportunity. the plaintiff's contract the SCS. theory in his upon He claim the does to the is based on the alleged

Here, formation

however, of

a binding plan by

submission not allege at

of an approved that any he level p. 7, no ever for that one-had of the any Mr. has

conservation presented review. "it is In his

contractual he that states the or plan

agency

fact,

memorandum was tainted aware

contra, and that was p. would that

probable the an

record others, because

neither submitted it." prior

Committee approved

were the

the

SCS

Plaintiff Id.,

unaware 7, that make that

While

the

plaintiff conduct

alleges of a sham, of his It

summarily, the Committee

fraudulent

administrative Stutz, retired Yeutter, plaintiff's defendant that the and who

proceeding source replaced. the

he also problems is also the has

states with

at p. i0 the

alleged been was

Committee, that time

apparent at the

Clayton of the by

Secretary application,

of

USDA since

original Glickman. not

been has the not

succeeded demonstrated

Therefore, receive a fair The

the

plaintiff before in

he could

hearing finds due

agency

as it is that to

presently dismissal

constituted. of Count

court

the

alternative

I is warranted

to the

plaintiff's

failure

2O

Case 1:05-cv-00990-EJD

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exhaust C. ~Res The the

his

administrative

remedies.

Judicata defendant's of Under on the the their States, third Count the merits judgment privies 440 argument that of in this res by support claim of his is request by for res

dismissal

I is

barred once of

judicata. judgment

doctrine is

judicata, a court

a final

entered

competent claims by

jurisdiction, parties v. or

operates on the

as a bar same

to further matter. Motor F.2d

based 147,

subject Anchor 700 or

Montana Frei~ht~

United

U.S.

153

(1979);

inc. (6th from

v. International Cir. 1983). Res

Brotherhood judicata

of Teamsters, prevents that parties were

1067,

1069

their

privies in

relitigating proceeding, which

claims and might

or issues also have bars

actually litigation in

litigated

a prior or

subsequent presented Inc.

of claims earlier 452 (6th U.S. Cir.

issues

been

the

proceeding. 394, 398

Federated

Department v.

Stores, 674

v. Moitie, 531, the later recovery. 434 (6th 536 same

(1981);

Castoff

Brundaqe, seek merits

F.2d

1982). s When the earlier they

successive judgment raise on

suits the

recovery

for

injury, even

precludes of F.2d four

suits

though

different Bd. is

legal

theories 649 with

Harrinmton Cir. i) by 1981). a final a court the same

v. Vandalia-Butler Res decision of Judicata was

of Education, established on the 2) merits the

elements: action involved

rendered

in the second

first action

competent

jurisdiction;

5 since res judlca~a bars claims which could have been filed in .the prior proeeedins, it would only be a bar fin this case if the court in the prior action would have had jurisdiction to entertain the plaintiff's breach of contract claim. This court has found, su_~, that it did not. Nonetheless, in the interests of judicial economy, the court will address this alternative argument. 21

Case 1:05-cv-00990-EJD

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parties their_priviesthefirst or as raises litigated causes of issues in actually the first litigated action; and or 4)

aculon;~' which there is should,

3) thesecond action have of been the

an identity Inc. v.

action. Inc.,

Sanders 973 F.2d a

Confectionarv 474, 480 (6th

Products, Cir. on of in on 1993). the the

Heller

Financial in

this

case, challenge in the which

final to the was

judgment decision entered

merits USDA to

of deny

the him

plaintiff's participation That

CRP was

case

number held

C2-90-609. that the There actions and USDA The

decision, properly

affirmed the

appeal, CRP first the privity

Secretary is an

denied parties

plaintiff's the filed of

application. and second

identity the

of

between also

because defendant Secretary subject of the CRP. The contract the which was

plaintiff is who

here in was two

prior with first

action, former case. the

Glickman Yeutter, matter

a position a defendant is the the

in same,

the

of the refusal

cases

namely,

propriety in the

USDA's

to allow

plaintiff

to participate

plaintiff claim in

argues the first

that

he

could because

not he

have did

pursued not know SCS,

his about upon

action

submission he filed. 31, which bases

of the his

approved

conservation until to the

plan after

by the the

contract

theory,

first

action

However,

according counsel submitted An

plaintiff's copies on in

affidavit, of the SCS 31,

paragraph approval 1989 case in on

plaintiff's had been in 15,

received to the was

Committee entered

August

discovery N~vember

1991. 1991

order

the

previous to the

granting

summa_~/

judgment

22

Case 1:05-cv-00990-EJD

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Page 25 of 36

Secretar~ claim

on

Count October the

i, 7,

but

final

judgment two moved

was years

not

entered

on

that is no or

until that

1993,

almost either of the

later. the

There

evidence requested summary plan in

plaintiff

to amend

complaint

reconsideration judgment 1991, after two See

interlocutory evidence of

order the would SCS

granting approved been

discovering

procedural Fed.

avenues

which

have

available Fed. of

to him.

R~ Civ.

P. iS (amendment

of pleadings); before has not entry to

R. Civ.

P. 54(b)

(revision all of

of interlocutory claims}. The theory

order

judgment that

adjudicating his in the the breach

plaintiff could

failed have

show

contract case. of the

been

presented All satisfied. the

previous elements

of

res this

judicata court has

bar

have

been over by res

Assuming

arquendo of

that

jurisdiction then barred

plaintiff's

breach

contract

claim,

it is

judicata. V. Counts A. Statute The asserted applicable Privacy that Act II and ~f III Privacy Act Claims

Limitations has also moved ground to dismiss that The this the Privacy Act claims by the for

defendant in Count statute claims

II on the of

claim of

is barred limitations which

limitations.

statute §552a(g)

is found must be

in 5 U.S.C.

(5),

provides

such

claims

filed

within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so. misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the 23

Case 1:05-cv-00990-EJD

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individual A cause statute knows or of of

of the under

misrepresentation. the Privacy not begin Act to does run not until arise the and the

action

limitation know 789, F.2d

does of the

plaintiff v.

should 821 F.2d

alleged

violation. 1987). (gth Cir. Se___~e 1990)

Tijerina also Rose

Walter~s, United statute should

798 (D.C.Cir. 1257, 1259

States, of have The

905

(Privacy person knew or

limitations known or to the file the of

commences alleged a Privacy district Justice, to

vhen

reasonable

violation). Act court 204 show claim of F.3d within the statute Davis (7th statute v. United 1999); 1988). of v.

failure

limitations United 2000)

deprives DeDt. has invoke Com'n, United

jurisdiction. 723, 726 with Griffin (D.C.Cir. (2d Cir.

States (plaintiff to

Cir.

burden court's 192

compliance

limitations States Akutowicz The disclosure number The

jurisdiction); 1081, F.2d Count 1082

Parole v.

F.3d 859 in

States, Act claim was

1122, II

1126 is the as

Privacy claim

same

unlawful II in case

that and

previously

filed dismissed

Count without

C2-90-609

was

voluntarily argues the statute at that Cir.

prejudice. without indeed the

defendant did

correctly not toll had F.2d

that of

this

dismissal if Wilson

prejudice plaintiff's Ohio CORD.,

limitations, Se__~e

claim 815

accrued 26,

time.

v. Grumman

27 (6th

1987). he dismissed evidence not given II of the to the the previous support evidence presgnt

However, Count that upon II

the

plaintiff he did not

contends have

that

because He he

sufficient he was

count. which

further now

alleges to

that

relies

establish

Count

24

Case 1:05-cv-00990-EJD

Document 14-2

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complaint provided Act

in with

discovery that request

in

the

previous

case,

and

that

he

was

not

evidence in

until of

he filed 1998.

a Freedom

of information Aff., Paras. was in

"FOIA")

March

Plaintiff's this the

36-40. deliberately Count through The civil broad because agencies receive evidence memorandum action, present plaintiff's whether filed the that should Count statute but

The

plaintiff concealed

contends from until him, and

that thus

information cause of action

II did his

not FOIA

accrue

he learned

of the additional

evidence

request. suggests to the that Privacy the Act scope claim of may discovery not have in been the as

defendant relative scope FOIA that

action as the the

of information request this would could in

available include explain

through

a FOIA

request, other did is not no

information why the

from

, and this as

plaintiff there

information to why

discovery. J through in O

However, to the

Exhibits not

plaintiff's in the first The of the or have on

contra were

were later also

produced

discovery a FOIA what the the previbus position

available does not

through reveal was in

request. scope

record

discovery

request in the as

action, should

a reasonable a FOIA request

person sooner

plaintiff's to

opposed first as

relying The the relies for the

exclusively court

discovery genuine have II

provided issues known of

during fact

the

case.

concludes knew or

exist

to when he now

plaintiff upon

of the

information summary

to support on a

which of

preclude

judgment Count Ii.

defendant

limitations to Exhaust

ground

on

B. Failure

Administrative

Remedies

25

Case 1:05-cv-00990-EJD

Document 14-2

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The and IiI

defendant for failure

has to

also

moved

for

the

dismissal

of

Counts

iI The

exhaust the FTCA, case.

administrative 28 U.S.C. However, to the

remedies. (i), filed

plaintiff for FTCA

has invokeded in be

§1346(b) claims for

as a basis under the

jurisdiction must first

this

submitted

agency

administrative prerequisite United bringing States, suit

review. to 508 filing UoS.

28 U.S.C~ a civil 106, court 113

§2675(a). action (1993) after v.

This

is a jurisdictional FTCA. McNeil v.

under (FTCA they United

the bars have

claimants exhausted

from their

federal

until

administrative 300 (gth Cir.

remedies); 1995) and

Cadwalder

States, of

45 F.3d the FTCA

297, are

(administrative be strictly Garrett is

requirements ~hered v. United to

jurisdictional sovereign (6th capable as FTCA, Cir. of the he

must

because States,

the 640

FTCA F.2d

waives 24, 26 not

immunity); 1981) waiver plaintiff must first There

(§2675(a) or subject seeks

a jurisdictional to estoppel). his Privacy

requirement, Therefore, Act claims

insofar under the

to pursue his

exhaust is no

administrative that the

remedies. plaintiff his why claim has to exhausted the USDA. would his He be the

indication by

administrative also has offered and,

remedies no good in any

presenting as to

reason event,

such will

exhaustion not

futilei

futility in

excuse

jurisdictional Constructors (10th United Cir.

exhaustion CorDv. U.S. (no

requirement Bureau

§2675(a).

industrial 15 F.3d Ma 963, nko v. Due to-the cannot 967

of Reclamation,

-1994) 830

futility 831, to

exception 840 (8th with

to §2675(a)) !987)

State~,

F.2d

Cir.

(same). the

plaintiffls

failure

comply

§2675(a),

FTCA

26

Case 1:05-cv-00990-EJD

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furnish The by the

a basis court

for has

jurisdiction found no

in

this for must

case. the proposition his the of advanced Act

authority plaintiff

defendant under the Act

that

the

pursue of

Privacy

claims the

jurisdictional itself in authorizes district Act

provisions the

FTCA. a civil

Rather, action

Privacy the

bringing 5 U.S.C. own

against

agency the Act

court. has its

§552a(g)

(I).

However, "The only Privacy after 906

Privacy permits of 978, 173

exhaustion to enforce remedies."

requirements. its provisions Ezenwa Holbrook WL 96744 v. v. (6th

a civil

action

exhaustion F.Supp. ~.Q. Inc.,

administrative 986 F.3d (M.D.Pa. 429

~allen,

1995).

See

also 1999 claim 144

C & N Coal Cir. 1999)

(unreported), disclosure 131 F.3d

(exhaustion States Cir. v. 1997) 32,

of

improper

required);

Trueman 1997

v. United

Dept. !997)

of Na~-v, (exhaustion States

(unreported), of access 127 of F.3d claim 470,

WL 734154

(Sth

of denial Dept., v. Office

re~dired) 476-78

; Taylor Cir. 828 claim (7th 1986)

United

Treasury Dickson

(5th

(same); 40 (D.C.Cir.

Personnel

Manaqement, of records 1261 Cir.

F.2d

1987)(exhaustion v. United

of amendment 817 F.2d

required]; Cir. 1987)

Diliberti (same)

States,

1259, (7th

Germane v. Hec kler, for claim

804 F.2d 366 of failure

(exhaustion

required

maintain

records). there Act an is no claims indication to the be that agency, the nor The be plaintiff is there ever any presented evidence that failure the to

Here, his that Privacy such

action Privacy

would Act

futile. should

court

concludes for

plaintiff's exhaust

claims remedies.

dismissed

administrative

27

Case 1:05-cv-00990-EJD

Document 14-2

Filed 02/17/2006

Page 30 of 36

C.

Failure The

to

State

a Clai~ also the argues that the Privacy pleaded Act claims should

defendant because

be dismissed any adverse

plaintiff due to

has the

not

that

he suffered This Ii.

consequences taken

alleged claim

violations. advanced "[n]o in Count agency of

argument

is well the

in regard

to the

Under disclose any of means the

provisions which

of 5 U.S.C. is contained

§552a(b), in

shall by

any

record

a system the

records

of communication to whom the

to any record

person"

without

prior of

consent several

person

pertains, is defined

unless as

o~e

exceptions

applies.

A "record"

any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history~ and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print o~ a photograph[.] 5 U.S.C. records retrieved number, §552a(a) under by the the (4). A "system of the any or records" from or means which by "a group of is

control name of

agency

information identifying to

individual

some

symbol,

or

other

identifying §552a(5). to in recover

particular

assigned

the

individual[.]" To

5 U.S.C. a right

establish

based

on

a violation the plaintiff

of

the must was " in 5

disclosure plead facts

prohibitions showing that

5 U.S.C. agency

§552a(b), "acted in

the

a manner

which

intentional such a way

or willful" as to have

in improperly an adverse

disclosing effect on

information

an individual."

U.S,C. §552a(g) A claim

(i) (D), (g) for damages under 28 5 U.S.C. §552a(g) (!) (D)

Case 1:05-cv-00990-EJD

Document 14-2

Filed 02/17/2006

Page 31 of 36

violation following

of the

Act's

prohibition

against

disclosure

entails

the

elements:

(i) the in~ormatlo is covered by the Act as a "record" contained in a "system of records"; (2) the agency ,,disclose[d]" the information; (3) the disclosure had "adverse effect" on the plaintiff (an element which separates itself into two components: (a) an adverse effect standing requirement and (b) a causal nexus between the disclosure and the adverse effect); and (4) the disclosure was "willful or intentional." Quinn v. Stone, 978 the F.2d 126, 131 in (3d the in Cir. 1992). complaint of his nor the

Neither exhibits contra this

allegations by the

present support was

submitted identify what

plaintiff

memorandum or whether

type

of information "records" of the

disclosed, in

information within simply CRP the

constituted the meaning that

contained

a "system 19 of

of the

records" complaint

Act.

Paragraph of the

alleges file were

the

'icontents" The

plaintiff's fails by to the The or

confidential allege alleged complaint showing of how that

disclosed. any

complaint effect from any by his

also

plaintiff

suffered of

adverse

caused file.

improper includes an

disclosure no facts effect

information

identifying was caused

adverse

effect

adverse The under the

an illegal in Count

disclosure II do not

information. a claim The

conclusory Privacy in

allegations Act.

state

plaintiff maintain, CRP of

contends update to keep file to

Count

III

that the

the

USDA

failed of

to the

properly plaintiff's the that the

and

correct

contents or

file, the

a record the

of disclosures, The

to reveal argues that Act

contents Count III

plaintiff. The

defendant

fails cam_not

to state

a claim. that 29

defendant alleged

contends Privacy

plaintiff

establish

these

Case 1:05-cv-00990-EJD

Document 14-2

Filed 02/17/2006

Page 32 of 36

violations The complains violation the USDA's

resulted court of of the

in agrees

an adverse that to to

impact the a

upon

him. that of does the plaintiff in how

extent record

failure

keep the

disclosures not allege

5 U.S.C.

§552a(c),

complaint effect a claim SCS

alleged (i) is

error (D), true

had i an adverse and fails to state

on him,

as required

under

~552a(g) The same his

of the

plaintiff's the

that

he

was

denied

access plan, a

to as

record, under the

specifically, 5 U.S.C.

approved This with

conservation claim an requires

mandated that for

§552a(d) to under

(i).

showing

agency

refused

comply

individual 5 U.S.C. (I)

request §552a(g) confined Manuel Cir. issue

inspection

of records The or

§552a(d)

(I).

(i) (B) and to v. records

access

provision within

of §552a(d) of

information

a system F.2d

records. 1116 (6th at

Veterans The

Administration Act does

Hosp., not apply

857

1112, the

1988). are

Privacy

where

documents

not

contained

in the

agency's

"system

of records."

I_~d.

at 1117. The the SCS complaint plan in was here contains in the (5) are insufficient agency's . facts "system the to of reveal records" that as

contained §552a(a) section and

defined available

5 U.S.C. under the this

Further,

only the

remedies from

an order the

enjoining production and an award Since that

agency

withholding improperly fees and

records from

directing plaintiff, §552a(g) of his

of any of the he

records

withhold costs. in SCS

the

attorney's plaintiff given of a

5 U.S.C. paragraph plan in 31 1991

(3). affidavit the

acknowledges copy of the

was

during

discovery

phase

the

3O

Case 1:05-cv-00990-EJD

Document 14-2

Filed 02/17/2006

Page 33 of 36

previous moot state years

lawsuit, before

the this

refusal complaint

of

access was

branch and

of Count

Count III

III fails

was to

filed,

a claim. The plaintiff's claim of failing relates to properly the agency's maintain handling I) records of that 2) that a the

under SCS

5 U.S.C. plan.

§552a(e) under

also

A claim failed

§552a(e) its the was or

requires record

a showing:

government as a

to fulfill result of

keeping to to the failed

obligation; keep

proximate was

failure adverse

records,

determination the agency and

made

which

plaintiff; to

3) that the Rose

intentionally 4) that 905 the

willfully

maintain damages.

records; v. United

plaintiff 1257,

suffered 1259 (gth

actual Cir.

States,

F.2d

1990);

5 U.S.C.

§552a(g) (i) (C), (g) As complaint constitutes is also SCS can at plan form 1119 noted or previously, the present it record within the cannot whether the be t determined SCS of from the plan It the

the

conservation Privacy

a "record" whether "system for to on Count

meaning had

the

Act.

unclear in its the

agency

an obligation the See

to include failure

of records" a Privacy adopt agency III

or whether Act claim. position records

to do so 857 F.2d

basis

~anuel, §552a

(declining duty Thus, defendant

general to fails place to

that into

places of

affirmative records.") The was

"system

state

a claim. cannot SCS plan show that he the

argues

that

the

plaint~iff of case the

prejudiced of appeals

by any held

faulty in the

handling previous

because

court denied

that

the

agency this

properly argument

the

plaintiff's

application.

However,

31

Case 1:05-cv-00990-EJD

Document 14-2

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Page 34 of 36

presupposes without plaintiff determined alleged Federal court formed then

that The

the

plaintiff's does

breach not

of

contract allege it

claim that cannot due to

is the be the of that was

merit. has

complaint

adequately because any

suffered the

actual plaintiff of

damages suffered the SCS of the

whether improper

injury th~

handling the no

plan

until

Court If

Claims concludes but that

decides that the

merits

contract or that

claim.

contract was

exists,

a contract the to to If, the the on

agency has

authorized no

to rescind due led

contract, alleged agency's the other in the of the

the

plaintiff to to keep honor

suffered which

damages

failure failure hand, Court other damages in the his

records its

supposedly obligation. breach able

contractual on his if

the of

plaintiff Federal

prevails Claims,

of contract to satisfy

claim all

and

heis

elements under file

of a §552a(e) the theory in

claim, the

then failure

he could to

conceivably the SCS

prove plan

that the

inciude to

resulted of

agency's At

failure this

timely

recognize the

existence

a contract. claim is not

point,

however,

plaintiff's VI.

§552a(e)

ripe.

Conclusion In accordance is granted. for lack of for with The the foregoing, in count the defendant's dismissed Counts for motion to

dismiss prejudice III are

claim

I is

without II and to

subject failure

matter to state

jurisdiction. a claim and

dismissed

failure

exhaust

administrative

remedies.

32

Case 1:05-cv-00990-EJD

Document 14-2

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Page 35 of 36

it is so

ordered.

Date:

July

18,

2000

33

Case 1:05-cv-00990-EJD

Document 14-2

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Page 36 of 36

CERTIFICATE OF FILING t hereby certify that on February 17, 2006, a copy of the foregoing 'DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSETO DEFENDANT'S MOTION DISMISS" was filed TO electronically. I understand that notice of this filing will be sent to all parties by operationof the Court's electronic filing system. Parties mayaccess this filing through the Court's system.

/s/KELLY B. BLANK